Nation v. Easley

• Decision Date: 07 April 1928
• Docket Number: 28,002
• Parties: FRED NATION, Appellee, v. H. R. CLAY and J. M. EASLEY, as Partners, etc., Appellants
• Court: Kansas Supreme Court

266 P. 45

125 Kan. 735

FRED NATION, Appellee, v. H. R. CLAY and J. M. EASLEY, as Partners, etc., Appellants

No. 28,002

Supreme Court of Kansas

April 7, 1928

Decided January, 1928

Appeal from Shawnee district court, division No. 1; JAMES A MCCLURE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PLEADING--Motion for Judgment on Pleadings. It is a proper practice to move for judgment in favor of plaintiff on the pleadings when it clearly appears that defendant advances no meritorious defense to the action.

2. SAME--Judgment on Pleadings. The admissions of defendants in their answer and opening statements, as shown in the record, considered and held that the trial court was justified in sustaining plaintiff's motion for judgment and in entering a judgment in favor of plaintiff.

Dennis Madden and C. B. Randall, both of Topeka, for the appellants.

James E. Larimer and Eugene S. Quinton, both of Topeka, for the appellee.

OPINION

JOHNSTON, C. J.:

This is an appeal from a judgment rendered upon the pleadings in favor of Fred Nation against H. R. Clay and J. M. Easley, a partnership, from which the latter appeal.

The defendants entered into a contract with Nation, of which the following is a copy:

"Received this 5th day of November from Fred Nation of Emporia, Kan. $ 2,000 the same being in full payment and satisfaction of all claims which Clay & Easley and Montgomery & Easley may have against said Nation by reason of damages for injury to their cattle during the pasture season in 1919, growing out of the Texas fever condition in the Williams pasture at Florence. It is further understood as part of the consideration for the payment of the $ 2,000, Clay & Easley and Montgomery & Easley agree to file full and complete claims against the U.S. government, with the understanding that out of any moneys received from the government by reason of said cattle, if the amount is sufficient, the first $ 800 is to be divided equally between Montgomery & Easley and Clay & Easley, considered as one party, and Fred Nation as the second party. The balance, if any, shall be applied toward reimbursing Fred Nation to the extent of $ 2,000, if there be sufficient funds, and if not, the application shall be made as far as possible. In case there is less than $ 800 collected from the government on the cattle, the amount shall be divided equally, and in case there is more than $ 2,800, all moneys in excess of the $ 2,800 shall go to Clay & Easley and Montgomery & Easley.

CLAY & EASLEY, MONTGOMERY & EASLEY,

By GUARANTY CATTLE LOAN CO.,

FRED NATION,

By WM. J. WILSON."

The fund mentioned in the contract was received from the United States government by J. H. Mercer, of the live stock sanitary commission, for cattle injured by Texas fever, and it was garnished in his hands and paid into court. The plaintiff alleged that the contract had been fully performed on his part and that he was entitled to recover from the fund held by Mercer in accordance with the provisions of the contract. Easley answered by a general denial and asserted a special denial to the effect that the guaranty company, a Missouri corporation, was not the agent of the defendants nor had authority to execute the contract for them, and hence prayed that the action be dismissed. In a verification of the answer Easley stated that the Guaranty Cattle Loan Company had no right or authority from defendants to execute the contract in suit and that the company had no authority under the statutes of Missouri to obligate the defendants. Clay also filed an answer for himself and the partnership, admitting that the partnership had consented...